Not Just Another Execution

This past Thursday night, Humberto Leal Garcia Jr., a Mexican citizen, was executed in Texas. His death - and more precisely, the way it came about - could have far reaching implications at home and abroad.

Garcia was convicted of the heinous kidnapping, rape and murder of a 16-year old in 1994. By virtually all accounts, he was guilty of the crime. The central issue in his case however was that he was not informed of his right to contact the Mexican embassy when he was arrested. Seemingly a harmless oversight, no? In fact, the failure to inform Garcia of his right to call the Mexican embassy violated the Vienna Convention on Consular Relations (to which the United States is a party) and could have altered the course of his trial and his ultimate sentence. Rather than have the considerable resources of the Mexican government and consular officials at his disposal to prepare his defense, Garcia was represented by a Texas public defender. (State public defenders, especially in the south, are notoriously underfunded, overworked and sometimes inexperienced).

This is where things start to get a complicated, but they're important to my point, so I'll take a minute to review them:

1) In 2004, the International Court of Justice in the Hague ruled in favor of Garcia and held that American courts must review cases where the defendants claimed they suffered harm by not being allowed to call their consular officials first.

2) In 2005, President George Bush issued a memorandum supporting the ICJ's decision and telling Texas state officials to comply with it. Despite being the state's favorite son (at least at the time), Texas officials chose to ignore President Bush's memorandum.

3) In 2008, the Supreme Court held that the U.S. is bound by the ICJ's decision. However, it also held that the President alone could not force the states to comply with the ICJ decision; Congress had to act as well.

4) Congress - perhaps not surprisingly - did not act on the Supreme Court's decision right away. Instead, the Senate waited until June 2011, MORE THAN 3 YEARS LATER, to propose legislation forcing Texas to comply with the ICJ.

5) Garcia's execution date was scheduled for July 7th, which didn't give Congress enough time to pass the legislation. So, Garcia appealed up to the Supreme Court to delay his execution so that Congress could pass the bill. He also asked Governor Rick Perry (the same governor that is about to throw his hat into the ring and run for the GOP presidential nod) to delay his execution. President Obama implored both the Supreme Court and Governor Perry to delay Garcia's execution. So did numerous foreign governments, including Mexico.

6) Thursday evening the Supreme Court rejected Garcia's appeal by a 5-4 vote. Governor Perry also refused to delay Garcia's execution. Garcia was executed by lethal injection Thursday night.

Garcia's execution is a dizzying, impressive - and perhaps unsettling - example of how our federalist system of government works. In Thursday's decision, a majority of the Supreme Court held that to delay an execution in order to allow congress to pass legislation would be the equivalent of enacting the legislation itself. In other words, the Court feared that it would be violating the separation of our branches of government that we hold so near and dear to our national identity. On the other hand, the four dissenting justices (led by Justice Breyer, the Court's leading "internationalist") argued that the Supreme Court's refusal to delay the execution was overstepping the executive branch's authority to govern our foreign relations, since executing Garcia would result in irreparable harm to our relations with other countries. As Governor Perry's determination to allow the execution to proceed demonstrated, the rights of states to enforce their criminal laws took priority to the will of the federal executive, and even to the decision of the ICJ. Similarly, national sovereignty also triumphed over the authority of a multi-national/international institution (the ICJ).

In my mind, our system of government - the separation of the three branches and the federalist system allowing states to enforce their criminal laws - worked in the case of Mr. Garcia. The Supreme Court decided the scope of its authority, and the governor of the state responsible for applying its criminal laws to Mr. Garcia's actions made a determination that was wholly within his discretion, President Obama's will and the will of other countries be-damned.

Nevertheless, the question that we must ask ourselves is not whether the process was correct in this instance, but whether the desired outcome was achieved. My answer to this question is that it was not. A man whose rights were violated in such a manner as to taint the validity of his sentence was executed. Our country overruled the decision of an important international institution, thereby damaging the effectiveness of the ICJ as well as our own credibility in the international arena. By choosing to ignore Mr. Garcia's right to contact his consular officials, we put Americans abroad who are arrested in their host country at great risk of facing a similar deprivation of their rights.

And therein lies the rub: If our system leads to an unwanted result then it suggests that perhaps our system needs fixing. It's hard to point to our government institutions and our model of democracy as the light that outshines all other nations if they ultimately place our own citizens in harm's way and ignore the rights of the very people that our system claims to protect.

I'm not suggesting that we need to embark on "Extreme Makeover: American Government Edition." But, I do think we need to reflect on changes that should be made to ensure both that the processes in our system of government are working AND that they're achieving the desired results. Two immediate steps come to mind: First, we need to put into place a mechanism by which ICJ decisions are enforced such that we can't sidestep their rulings so easily. Most significantly, Texas officials should not have been allowed to ignore President Bush's memorandum requesting compliance with the ICJ decision. Second, Congress must be held accountable for inexplicably delaying legislation until it was too late to prevent Mr. Garcia's execution before the violation of his rights was fully examined. And, going forward, Congress cannot be allowed to sit on its thumbs when the Supreme Court has expressly directed Congress to be the ultimate arbiter of a matter in controversy. In such an instance, Congress must state its intention to support or reject the Supreme Court's decision in a timely fashion, thereby allowing the parties involved to seek alternative remedies.

Taking these steps are not intended as a way to honor the memory of a violent criminal over that of his victim. They will, however, protect the rights of the accused in our country as well as the interests of our citizens traveling and living abroad, advance the success of our system of government, and further repair America's credibility abroad and cement its position as a global leader.

Casey Anthony is Not OJ Simpson

Several commentators (click here and here) have explained why the jury's verdict on Tuesday acquitting Casey Anthony of murdering her daughter was justified. In brief, the legal standard for a criminal conviction is that the jury must believe beyond a reasonable doubt that the defendant committed the crime of which she is accused. Casey Anthony's jury of her peers was ultimately not so convinced.

To elaborate: the lack of concrete forensic evidence tying Casey Anthony's DNA to her daughter's remains and the absence of a cause of death determination created enough reasonable doubt to overcome the circumstantial evidence introduced by the prosecutors in support of the state's allegations. Most notably, the prosecution offered expert testimony that a bad smell in Casey's car was chemically linked to Casey's decomposing body. (smelly car = guilty of murder? That's a tough connection to make.) As one juror noted, Casey Anthony might not be innocent of her daughter's murder, but there was not enough evidence to convict her.

While both cases were overwhelmed by media coverage, captured the nation's consciousness, and resulted in acquittals despite public opinion to the contrary, OJ Simpson's acquittal in the murder of his wife was more likely achieved by a combination of a superb and highly paid defense team and prosecutorial mistakes ( Exhibit #1: "if it doesn't fit, you must acquit"). Casey Anthony's acquittal on the other hand was the inevitable and justified result of insufficient evidence, despite the prosecution's best efforts and a decidedly mediocre defense attorney. (Jose Baez was refused admission to the Florida Bar for eight years because he owed child support payments, was representing Casey Anthony on a pro bono basis and was only practicing law for three years when he took on the case).

So, while justice may not have been served for Caylee since the true circumstances of her death may never be known, in my opinion, our justice system worked for Casey Anthony, even if the outcome reached was contrary to public opinion.